Kavanaugh’s Lies About SeaWorld: Annotated

Allow me to be blunt: Judge Brett Kavanaugh lied about the SeaWorld case during his Senate Confirmation testimony last week and he showed very little understanding of the Occupational Safety and Health Act.

But for those who take the Supreme Court — and workers’ rights — seriously, the facts are the facts. And these facts should be very troubling for American workers.

I can’t figure out how the lies in Kavanaugh’s testimony or his legal misunderstanding of the OSHAct would get a passing grade in the first year of law school, much less a lifetime seat on the Supreme Court of the United States.

In case you’re just tuning in, in 2010 SeaWorld killer whale trainer Dawn Brancheau was dismembered and killed by a killer whale during a live show in front of hundreds of horrified customers, including small children.

OSHA, which had proven that SeaWorld was aware that the whale that killed Brancheau, had been involved in previous trainer fatalities, and that killer whales in general were hazardous to trainers, cited SeaWorld and ordered them to use physical barriers or minimum distances to separate trainers from whales. SeaWorld appealed, and both the OSHA Review Commission and the federal Appeals Court found in OSHA’s favor. The only dissent throughout the entire process was Appeals Court Judge Brett Kavanaugh who argued in his 2014 written opinion that OSHA had paternalistically interfered in a worker’s right to risk his or her life in a hazardous workplace, that OSHA had violated its long-standing precedent not to get involved in sports or entertainment, that the agency had no authority to regulate in the sports or entertainment industries and that Congress — and only Congress — could give OSHA that authority.

(You can read my original post about the SeaWorld decision here, and an excellent piece by my former OSHA colleague Deborah Berkowitz here.)

So, let’s fast-forward to last Thursday, when Kavanaugh was questioned about his SeaWorld dissent by Senator Diane Feinstein (D-CA) during his Supreme Court confirmation hearing. You can watch and listen to the exchange beginning at 1:42:16 of Thursday’s hearing here.

Senator Feinstein: “Judge Kavanaugh, you sat on a case where a trainer, Dawn Brancheau, was killed while interacting with a killer whale during a live performance. Following her death, the Occupational Safety and Health Administration found that SeaWorld had violated workforce safety laws. The majority agreed with the agency, that SeaWorld had violated the law. According to what I know, you disagreed. In your dissent, you argued that the agency lacked the authority to regulate employers to protect participants in sporting events or entertainment shows. However the statute, as enacted, applies to each employer and it defined employer as anyone engaged in business affecting commerce who has employees.

Where in the text of the law does Congress exempt employers of animal trainers?”

Judge Kavanaugh: “The issue, Senator, was precedent. I follow, as a judge, I follow precedent.The precedent of the Labor Department, as I read it, was that the Labor Department under the statute would not regulate what it called the intrinsic qualities of a sports or entertainment show.” [emphasis added]

There are several problems in Kavanaugh’s statement.

There is no precedent for OSHA not regulating the entertainment industry.

Just the opposite, in fact. OSHA has cited circuses and Broadway musicals several times due to deaths and injuries of performers. For example:

In 2011 OSHA issued three serious citations and a $12,600 fine to 8 Legged Productions LLC following four separate incidents that resulted in injuries to cast members of the musical “Spider-Man Turn Off the Dark.”

In June 2013, Nevada OSHA fined Cirque du Soleil $23,035 for five violations after a performer in the show “Ka” at the MGM Grand Hotel and Casino in Las Vegas was killed after falling 94 feet during a show. The wire rope attached to her harness broke because it was scraping against a sharp edge.

In November 2014, Federal OSHA cited the Ringling Bros. and Barnum & Bailey Circus after eight performers fell more than 15 feet during the “hair hang act” as they were suspended from a twirling frame by their hair. According the OSHA investigation, “The hair hang act was advertised as a spectacular and thrilling act to perform and watch. Six performers are hung from their hair from an overhead hexagonal steel framed apparatus.” OSHA determined that a steel carabiner holding the performers was not strong enough to support their weight.

OSHA Is currently investigating the death of a Cirque du Soleil performer in Tampa, Florida after he fell during an aerial act

One other thing. Kavanaugh was not only wrong, but he was just making stuff up: SeaWorld didn’t even argue that its whale trainers weren’t covered by OSHA because they were in the entertainment business. It wasn’t part of the case until Kavanaugh raised the issue.

Kavanaugh Lied About What He Wrote In His SeaWorld Dissenting Opinion

Judge Kavanaugh to Senator Feinstein: “The Labor Department in the oral arguments tried to distinguish, for example, the dangers of football from the dangers of the SeaWorld show and I did not, as I explained in the opinion find that argument persuasive.

But I did make clear two things, Senator. One is … that Congress could make the decision to regulate the intrinsic qualities of sports or entertainment shows, or the Labor Department could change its precedent...”

Actually, Kavanaugh is lying here. He made one of those things very clear in his SeaWorld dissent: that only Congress allow OSHA to regulate sports or entertainment and only by changing the law. The Department of Labor, he wrote in his dissent, did not have the authority to cover sports or entertainment because Congress hadn’t intended these kinds of occupations to be covered when the Occupational Safety and Health Act (OSHAct) was passed. He wrote in his 2014 dissent:

In the real world, it is simply not plausible to assert that Congress, when passing the Occupational Safety and Health Act, silently intended to authorize the Department of Labor to eliminate familiar sports and entertainment practices, such as punt returns in the NFL, speeding in NASCAR, or the whale show at SeaWorld.

To the extent sports or entertainment activities raise concerns about the risk of injury to the participants, several extant legal bodies possess significant authority to clamp down on unreasonable dangers: Congress, state legislatures, state regulators, courts applying state tort law. I take no position here on whether SeaWorld—or for that matter the NFL or NASCAR—should be subject to more stringent government regulation or liability, or otherwise should voluntarily make its activities safer. That policy question is not before us. My legal disagreement with the majority opinion boils down to one basic question: Who decides? Under current law, it is not the Department of Labor. [emphasis added.]

So can the Department of Labor change OSHA’s (non-existent) precedent, or can only Congress change OSHA’s (non-existent) precedent? It apparently depends on which Brett Kavanaugh you’re talking to and which day you’re talking to him.

Nor does Kavanaugh explain exactly how OSHA would “change its precedent.” Obviously he didn’t consider issuance of a citation against SeaWorld to be adequate. Maybe this would work:

The OSHAct Covers All Employees — Including Animal Trainers

Kavanaugh never really answers Feinstein’s direct question about where the OSHAct says that employers of animal trainers are not covered by the law. Because the OSHAct clearly states that all employees are covered by OSHA (with the exception of public employees.)

To put it bluntly, Kavanaugh’s statement in his testimony and in his SeaWorld dissent are not only wrong, but are also sheer hypocrisy. He claims to be a “textualist,” that is a jurist who gives primacy to the ordinary meanings of the words of a statute, and steers away from other sources of meaning, like legislative history. So it is unclear how textualism is consistent with his speculation on what Congress plausibly intended — but never actually said — fifty years ago when the OSHAct was passed. As Wharton Professor (and former OSHA official) Adam Finkel stated, “‘Textualist’ Brett Kavanaugh made up out of nowhere language he personally wished Congress had written, but never did.”

Kavanaugh misuses the word “intrinsic.”

Kavanaugh states that OSHA is not allowed to regulate the intrinsic qualities of a sport or enteratinment show.” But “intrinsic,” according to Merriam-Webster, is defined as “belonging to the essential nature or constitution of a thing.”

Now, one might make a convincing argument that tackling is “intrinsic” or “essential” to professional football. (Although there is still nothing in the law prohibiting OSHA from regulating the safety of football, even if the agency has chosen not to do so.)

But is close personal contact between trainers and the killer whales during performances “intrinsic” or “essential” to SeaWorld’s killer whale shows?

The answer is no. The main attraction of whale shows is watching the whales jump out of the water, do clever tricks and splash the spectators. Sure, the audience may also enjoy watching the trainers hug and cuddle the whales, but the show goes on even without the close, personal contact, as SeaWorld itself admits by the fact that they are continuing to allow their customers to “journey into the world of majestic killer whales” without the close contact between the whales and the trainers. People still seem to enjoy the show even without the opportunity to watch a trainer get killed during the performance.

Kavanaugh is Wrong: OSHA is permitted to regulate in “new” areas that Congress didn’t specifically mention 50 years ago.

The possibility OSHA might be confronted by “new” hazards that Congress did not foresee in 1970, or hazards for which there was no specific OSHA standard, was clear to the founding fathers of the Occupational Safety and Health Act (OSHAct) when the law was passed almost 50 years ago.

To ensure that OSHA would be able to require employers to protect workers from these “new” hazards, the OSHAct contains the “General Duty Clause”(Section 5(a)(1)), which enables OSHA to cite employers for exposing employees to hazards for which there are no standards as long as the hazard was “recognized” (by the employer or by the industry) and where there was a “feasible” means of preventing or reducing the hazard. SeaWorld was cited under OSHA’s General Duty Clause because the hazard of killer whales was well recognized by SeaWorld (and the industry), and because it was perfectly feasible to carry on with whale shows without exposing the trainers to death and dismemberment.

Furthermore, “new” hazards have also never been a legal problem for OSHA before. Many serious hazards facing workers today were not envisioned when the OSHAct was passed in 1970, but OSHA still regulates those hazards. Workplace violence and ergonomics are two examples of “new” hazards that are regularly cited under OSHA’s General Duty Clause.

The legislators that wrote the OSHAct most likely never predicted that infectious diseases might be an area that OSHA would someday regulate. And indeed, OSHA’s Bloodborne Pathogens standard, issued in 1990, was initially opposed because because infectious diseases were an area that OSHA had never regulated before the scourges of HIV/AIDS and hepatitis B started killing health care workers in large numbers. Yet today, thanks to OSHA’s ability to regulate in areas that Congress never foresaw, thousands of health care workers owe their lives to OSHA’s Bloodborne Pathogens standard.

Kavanaugh is Wrong: Whale training is not a sport.

Killer whale shows are not sports. Whale trainers are not athletes; they’re workers in the entertainment industry. There is no fight between whale and human (or there shouldn’t be). No one is trying to win. No one keeps score. No one is supposed to get hurt. No one is supposed to die.

Killer Whale shows are not sports. There is no fight between whale and human (or there shouldn’t be). No one is trying to win. No one keeps score. No one is supposed to get hurt. No one is supposed to die.

Kavanaugh is Wrong: Tort Law is not a substitute for laws that prevent workers from getting hurt on the job

The use of lawsuits as the only recourse for workers in unsafe jobs went out of fashion (and law) 100 years ago. One would think that Kavanaugh, as a distinguished jurist being considered for the Supreme Court, would be aware that ever since the creation of workers compensation laws in the early part of the 20th century, employees have generally not been allowed to sue their employers after being hurt on the job. And the whole point of the OSHAct is to make the workplace safe before workers get hurt, not after it’s too late.

So the following statement from Kavanaugh was confusing, to say the least:

Kavanaugh to Feinstein: “…and I made clear that of course, state tort law, as the NFL has experienced with the concussion issue, state tort law always exists as a way to ensure or help ensure safety in the SeaWorld show.”

Huh?

Conclusion

In his SeaWorld dissent, Kavanaugh asked:

When should we as a society paternalistically decide that the participants in these sports and entertainment activities must be protected from themselves—that the risk of significant physical injury is simply too great even for eager and willing participants?

And most importantly for this case, who decides that the risk to participants is too high?

When? In 1970, with the passage of the Occupational Safety and Health Act that gave employers the legal responsibility to provide a safe workplace for their employees.

Who decides? Congress and then-President Richard Nixon decided, almost fifty years ago with the passage of the OSHAct and the creation of the Occupational Safety and Health Administration.

In that sentence Kavanaugh undermines the OSHAct’s clear guarantee of a safe workplace to every worker, and the employer’s responsibility to provide that safe workplace.

Now I’m no lawyer, nor am I a professor of law, but I can’t figure out how the lies in Kavanaugh’s testimony or his legal misunderstanding of the OSHAct would get a passing grade in the first year of law school, much less a lifetime seat on the Supreme Court of the United States. He has made clear that he does not believe in the mission of OSHA, the goals of the Occupational Safety and Health Act or what Congress actually said in the law, despite his claim to be a textualist.

He has shown himself, under sworn testimony, to be willing to make up facts and legal theories out of thin air to support his corporate-first ideology.

He is not fit for the Supreme Court.

Steven Pearlstein’s recent description in the Washington Post of Kavanaugh’s opinion about an environmental law could have been written about the SeaWorld case:

What you get is 60 pages of legal sophistry, procedural hair-splitting and scientific conjecture. You find a judge without a shred of technical training formulating his own policy solution to an incredibly complex problem and substituting it for the solution proposed by experienced experts. You find an appeals court judge so dismissive of the most fundamental rules of judicial restraint that he dares to throw out regulations on the basis of concerns never raised during the rule-making process or in the initial court appeal.

As Debbie Berkowitz wrote in her NELP post, “If you work in a dangerous job, you should be worried about Brett Kavanaugh.”

Very worried.

**************************************

P.S. Mitch McConnell has committed the Senate to vote on Kavanaugh’s confirmation by the end of this month. Senators work for you. Call or write and let them know how you feel.

There are some mistakes in this report! It would take to long to explain all of them. Here is my point! We want a Judge who will study the laws and then make a decision on what He Believes the laws meant. That is what he did in the SeaWorld case! The real reasons this was written1. PETA and other groups want to Close All Zoos And Aquariums. SeaWorld is on the top of the list. 2 this preson I s Not a Lawyer. So what. Does he really Know about any law! I Support the Judge and Zoos and Aquariums!

“If you work in a dangerous job, you should be worried about Brett Kavanaugh.” Very worried.
As a safety professional for many years, the power of OSHA and who sits on our Supreme Court was very low on my list of threats to the everyday worker. I used to work for OSHA. I was hospitalized as a result of a workplace accident. I have served as an expert witness and battled Corporate attorneys. I am very much “pro labor.” The biggest threat to worker safety today is a lack of defined safe work practices, adequate resources to properly train employees, and excessive work hours caused by worker shortages. In 30 years, neither OSHA nor any Washington bureaucrat did much to help on those fronts. We have huge gaps in safety in the US that cause the safety professional in the trenches to pull their hair out. And those are the people who are really making the difference in safety in this country. The average GM is not motivated by OSHA regulations or case law. He/she turns to the safety professional for guidance. If anyone has time on their hands, I know plenty of “fights” to pick that could ultimately help the safety professional in the trenches. I am not a conservative and not a Kavanaugh fan, but dragging safety into politics is self-serving and not helping the safety profession. If the Sea World case is the best we can do to demonstrate Kavanaugh’s disdain for the worker, it is not saying much. Just as Leo Gerard painting Kavanaugh as a child of privilege not capable of understanding the plight of the worker was disappointing. If we use that argument, there are plenty of academics, attorneys and regulatory folks throwing around their opinions about the safety of workers who have never spent a day working in a factory, in the fields, or in the mines. If anyone wants to know the biggest threat to the US worker, ask the safety professional in the trenches. And rest assured their answer will not be who sits on the Supreme Court. If a safety professional has done his job, he is not relying upon the regulatory climate to dictate his/her level of success.

TB: Thanks for your comment. Much food for thought there. I would tend to respect your opinion as a safety professional, and I also agree that it would be nice if there wasn’t any politics in workplace safety. It would be nice if all of the debate consisted of rational discussions about how to make workplaces safe. Unfortunately, that’s not the world we live in. As a safety professional working for employers, you’re only seeing those who have enough of an interest in protecting their workers to hire you. And you’re probably right; they don’t rely exclusively on the regulatory climate to do their job, although I would argue that the norms that OSHA sets are useful and valuable.

But for others — those who are just complacent or trying to save a few bucks by not focusing on safety, the regulatory climate and OSHA’s ability to set standards and enforce the law is vitally important. It would be nice if OSHA and health and safety protections weren’t political issues, but with regulatory/enforcement agencies like OSHA and “job killing regulations” under constant attack by this administration (and Republicans in general), we do have to be concerned about Supreme Court justices who base their views on antiquated notions like assumption of risk, who think that employees can just sue their employers, who believe that industry should just be allowed to regulate themselves, and don’t really understand the law they’re ruling on. If you think OSHA, OSHA standards and OSHA’s ability to enforce the law are important, then having someone like Kavenaugh on the court is truly disturbing.

Appreciate your thoughtful reply. Safety is very political and OSHA is a critical part of the equation. Unfortunately, over the years in DC, we have had Democrats and Republicans, conservatives and liberals, etc etc…and bottom line, we still have tedious, antiquated, and sometimes conflicting OSHA standards that are misinterpreted, even by OSHA personnel. That is scary. Long ago I stopped holding my breath that politicians of any slant were going to save us.
As far as the regulatory climate helping to keep the bad players in check…I doubt the repercussions will ever be great enough to help the truly bad ones find religion. I used to be involved with a contractor safety council full of mom and pop contractors. Host employers routinely threatened them with consequences and accused them of “not caring about safety.” What I learned is that most really did care about safety, they simply had no clue how to interpret some of our ridiculously confusing OSHA standards, not to mention host employer standards, which sometimes conflicted with OSHA, ie applying 1910 standards to construction applications. So, good luck to the small employer. We can threaten them all we want. If they are not clear about the expectations, they will throw their hands in the air and accept the beatings. To this day, I still come across major corporations with safety staffs who struggle to grasp 1910.147. There are safety pros out there who don’t know the difference between “construction” and “maintenance” …who misunderstand the essence of competent persons and qualified persons, etc etc That is scary. How many years has OSHA been complaining about the paper industry? And the best safety professionals have is 1910.261..a joke. I understand limitations of OSHA related to promulgation of standards, but there is no excuse not to have guidance documents like the HSE Executive does in the UK.
I don’t mean to sound unappreciative of those fighting the good fight in DC..or to minimize the importance of those in power. But honestly, I don’t see behavior changing much regardless of who is in office, at least not on the safety front. While we are bickering over who sits on the Supreme Court making 100,000′ elevation decisions, we have degreed engineers without the first bit of formal training in safety making critical decisions in factories every day. Union apprenticeships have been watered down. We have kids graduating with safety degrees who are ill-prepared to function in the real world. There is a tremendous lack of competence at various levels in manufacturing, construction and mining. That is scary. I never lost sleep over who was in power in DC. I routinely lost sleep over some of the other aforementioned items. Cheers.

That made me laugh in a good way, Jordan. As you know so well, OSHA has substantial resource limitations. Then there is our litigious society, which causes OSHA to walk on egg shells when it comes to providing guidance. If we could overcome those barriers…there are some opportunities with educational outreach…more centralized efforts than what I have experienced. The regions have made some nice efforts, but they are fragmented. And the OTI satellites appear to be hit and miss in terms of the quality of instruction.
Over the years, I believe the agency has lost some of its technical capability due to the loss of some of its technical experts of the past…folks who knew the true meaning behind the standards and the history of how the words got on the paper. Not too long ago I participated on a VPP recert and the technical capability of the auditors was very disappointing. It starts there.
…in terms of specific efforts, here is an example. I could see OSHA working with industries to produce documents like these.www.hse.gov.uk/pubns/priced/paper-mills.pdf
Today we have kids graduating with safety degrees walking into complex manufacturing facilities for the first time in their life and trying to figure out how the standards apply. What does “good guarding” look like in a paper mill? Good luck finding that information, kid! I am still not aware of a “best guarding practices” manual for the paper industry in the US. At least MSHA published some materials with lots of pictures explaining what they wanted to see.
Performance-oriented standards are wonderful for people who have the knowledge and creativity to develop solutions. I struggled mightily as a young safety professional and made big mistakes. We need readily available, 5th grade level guidance documents that do more than rehash the standard. How does one actually implement a PRCS entry program?. Leaving that up to employers and inexperienced safety professionals has proven ineffective. It is not just “common sense.”
I have mentored many a young safety pro from various universities and not a one knew how to effectively implement one of the more complex programs, ie confined space, fall protection, etc, without some pretty intensive guidance on my part. It should not be that difficult.
Cheers

Hi Jordan, some points of fact: as best I can tell the Judge was not lying as he was following OSHA precedent; the Sea World citation was the first according to his dissent as the citation is dated Aug. 23, 2010…followed by the ones you listed in your article starting in March 2011.

Additionally, the word “precedent” can mean “authority” in common law. I think he used it as such to mean, “OSHA could use their authority to change their rules and/or guiding principles to consistently address similar circumstances” instead of the seemingly arbitrary and capricious treatment of some entertainment industries. That’s how I read his dissension.

“The OSHAct Covers All Employees”; if so, OSHA is obligated to consistently apply their rules to all sports and entertainment industries. They can start with regulating the NFL, NHL, etc.

Who decides what “intrinsic” means? The sports & entertainment industry; not OSHA, not you, not me. The Judge used the precedent established by OSHA and legal rulings.

“Whale training is not a sport” (irrelevant to this case); however, whale shows are entertainment. The Judge pointed this out several times in his dissension. I don’t know the importance of including both terms; but, there is probably good legal precedent supporting his use of the terms.